Court of Los Angeles County, No. GA025008, Ct.App. 2/8
B260573William C. Ryan Judge
Richard B. Lennon and Suzan E. Hier, under appointments by
the Supreme Court, for Defendant and Appellant.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Margaret E. Maxwell, Noah P.
Hill, Louis W. Karlin and Nathan Guttman, Deputy Attorneys
General, for Plaintiff and Respondent.
the Three Strikes Reform Act of 2012, certain inmates may
file a “recall” petition to reduce their
punishment for third-strike sentences imposed on them for
offenses that are neither serious nor violent felonies. (Pen.
Code § 1170.126, subds. (b), (e).) When a court
evaluates a petition to recall such a sentence, may it find
an inmate ineligible for relief because certain facts
underlying a previously dismissed count show the inmate was
“armed with a firearm or deadly weapon” during
the commission of the third strike offense? (See §§
1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) The
trial court in this case relied on preliminary hearing
testimony to find that Mario Estrada was indeed armed during
the commission of his 1996 theft offense. The court did so
notwithstanding the dismissal - pursuant to Estrada's
plea agreement - of a robbery count and a firearm use
allegation connected to the same incident. What we hold is
that a trial court may deny resentencing under the Act on the
basis of facts underlying previously dismissed counts.
Because the trial court denied recall of Estrada's
sentence in a manner consistent with this rule, the appellate
court properly affirmed the trial court - and we now affirm
1996, defendant Mario Estrada pleaded guilty to one count of
grand theft from a person under section 487, subdivision (c).
Under a plea agreement, the prosecution dismissed a firearm
use allegation (former § 12022.5, subd. (a)) related to
the count of conviction, and robbery (§ 211), burglary
(§ 459) and false imprisonment by violence (§ 236)
counts based on the same incident that led to the conviction.
The prosecution also dismissed several additional counts
based on unrelated conduct alleged to have occurred on other
dates. Estrada further admitted to two prior convictions
qualifying as strikes under the “Three Strikes”
law,  and the trial court sentenced him to
an indeterminate term of 25 years to life.
years later, the electorate approved Proposition 36, the
Three Strikes Reform Act of 2012 (Proposition 36, or the
Act). Among other reforms, the Act amended the Penal Code to
permit recall of sentence for some inmates sentenced for
third strike offenses that were neither serious nor violent
felonies. (§ 1170.126.) After approval of the Act,
Estrada petitioned to recall his sentence. The trial court
denied the petition on the basis of its factual finding that
Estrada was armed with a firearm during the commission of his
1996 theft offense -- a finding that renders a petitioner
ineligible for resentencing under Proposition 36. (See
§§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd.
(e)(2).) In making this finding, the trial court reviewed the
transcript of the 1996 preliminary hearing held before
Estrada pleaded guilty. During that preliminary hearing, a
Radio Shack employee testified that Estrada entered the store
on April 9, 1995, and pulled out a small handgun. The
employee also testified that Estrada demanded the money in
the register and then, after he received the money, ordered
the employee to the store's back room. Estrada then left
the store. Based on this testimony, the trial
court denied resentencing, concluding that it was “more
likely than not” that Estrada was armed during the
commission of the offense.
appealed. The trial court, Estrada contended, impermissibly
based its finding of ineligibility for resentencing on
conduct tied to the robbery count and firearm use allegation,
which were dismissed pursuant to the plea agreement. The
Court of Appeal affirmed the denial of the petition, and we
granted Estrada's petition for review.
to the approval of Proposition 36, the Three Strikes law
imposed a prison term of 25 years to life on a defendant for
a felony conviction, even if it was not a serious or violent
felony, where the defendant had two or more prior convictions
for serious or violent felonies. (Former § 1170.12,
subds. (b), (c)(2)(A).) Following enactment of Proposition
36, defendants are now subject to a lesser sentence when they
have two or more prior strikes and are convicted of a felony
that is neither serious nor violent, unless an exception
applies. (People v. Johnson (2015) 61 Cal.4th 674,
681 (Johnson); see also § 1170.12, subd.
(c)(2)(C) [setting forth various exceptions].) One such
exception is if, “[d]uring the commission of the
current offense, the defendant used a firearm, was armed with
a firearm or deadly weapon, or intended to cause great bodily
injury to another person.” (§ 1170.12, subd.
applies both prospectively and to defendants already
sentenced under the pre-reform version of the Three Strikes
law. A defendant with two prior strikes convicted of a
nonserious, nonviolent felony cannot be sentenced to a third
strike term unless the prosecution “pleads and
proves” that one of the Act's exceptions applies.
(§ 1170.12, subd. (c)(2)(C).) For those sentenced under
the scheme previously in force, the Act establishes
procedures for convicted individuals to seek resentencing in
accordance with the new sentencing rules. (§ 1170.126.)
The procedures call for two determinations. First, an inmate
must be eligible for resentencing. (§ 1170.126, subd.
(e)(2).) An inmate is eligible for resentencing if his or her
current sentence was not imposed for a violent or serious
felony and was not imposed for any of the offenses
described in clauses (i) to (iv) of section 1170.12,
subdivision (c)(2)(C). (§ 1170.126, subd. (e)(2).) Those
clauses describe certain kinds of criminal conduct, including
the use of a firearm during the commission of the offense.
Second, an inmate must be suitable for resentencing. Even if
eligible, a defendant is unsuitable for resentencing if
“the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk
of danger to public safety.” (§ 1170.126, subd.
(f).) If an inmate is found both eligible and suitable, the
inmate's third strike sentence is recalled, and the
inmate is resentenced to a second-strike sentence.
(Ibid.; § 1170.12, subd. (c)(1).)
was among the defendants who received a third-strike
sentence, after pleading guilty to one count of grand theft
from a person in 1996. The Penal Code defines theft as
“feloniously steal[ing], tak[ing], carry[ing],
lead[ing], or driv[ing] away the personal property of
another.” (§ 484, subd. (a).) The code also
defines grand theft from a person as theft “[w]hen the
property is taken from the person of another.” (§
487, subd. (c).) By pleading guilty, Estrada admitted to
feloniously stealing the personal property of another, from
the person of another. Whatever else Estrada's admission
of guilt established, however, it did not by itself establish
that Estrada was “armed with a firearm or deadly
weapon.” (§ 1170.12, subd. (c)(2)(C)(iii).) But
the trial court concluded that Estrada was “armed with
a firearm or deadly weapon” during the commission of
the offense. (Ibid.; see also1170.126, subd.
(e)(2).) To make this determination, the court considered
more than just the facts established by Estrada's guilty
plea. It also considered transcripts of Estrada's